30
1. 82-233
IN T - E SUPREME COURT OF T I STATE OF MONTANA
II IE
1983
GIWNITE DITCH CO., et al.,
Plaintiffs,
WILLIAM ANDERSON, et al..,
Defendants.
CHARLES DESCHEEMAEKER, GEORGE PJ.
GAUGER and WILL G. METZ, JR.,
Petitioners and Xespondents,
-vs-
LAKRY PIHLAJA,
Respondent and Appellant.
Appeal from: District Court of the Thirteenth Judicial District,
In and for the County of Carbon, The Honorable
Charles Luedke, Judge presiding.
Counsel of Record:
For Appellant:
Anderson, Brown, Gerbase, Cebull & Jones; Andrew J.
Lensink, Billings, Montana
For Respondents:
Ayers & Alterowitz; Arthur W. Ayers, Jr., Red Lodge,
Montana
For Arriicus Curiae:
Donald D. MacIntyre, Dept. of Natural Resources,
Helena, Montana
-- - --
-
Submitted: January 14, 1983
Decided : May 5, 1983
MAY' 5 - 1983
Filed:
--.--- --- -- -- --
.
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
This action was instituted in the District Court of the
Thirteenth Judicial District of the State of Montana, County
of Carbon, requesting the District Court to amend a water
rights decree entered in 1970 and to declare petitioners'
water rights senior to those of respondent, here the
appellant. On December 16, 1981, the District Court entered
its order "clarifying" the decree entered in 1970. The
effect of the court's order wa.s to find the waters of Clear
Creek to be part of the Rock Creek system, declare the rights
of petitioners in Rock Creek water to be senior to the rights
of appellant, and require appellant to allow Clear Creek
water to flow into Rock Creek so that petitioners' rights
could be satisfied before appellant's rights were exercised.
Appellant appeals from that order. We affirm.
The appellant is owner of water rights in Clear Creek,
the earliest right dating to 1910. Petitioners have water
rights in Rock Creek, dating to 1896 which were decreed in
Granite Ditch Co., et al., v. William Anderson, et al., Cause
No. 275 (Thirteenth Judicial District Court, Carbon County,
August 21, 1903.) Clear Creek is a tributary of Rock Creek.
Appellant had obtained a court order issued February 17,
1970, without notice, directing the Rock Creek water
commissioner to "carry out" the Clear Creek water rights of
appellant "in accordance with the filing thereof, contingent
on water being available for said filings and. subject to
hearing objections of any party contending to be injured
thereby." The involvement of the water commissioner of Rock
Creek stemmed from the fact that the Clear Creek water rights
were diverted at or near the mouth or outlet of Clear Creek
into Rock Creek, and then carried in the natural course of
Rock Creek for approximately one and a half miles to the
headgate of the High Line Ditch Company, where the water was
again diverted and carried in the High Line Ditch Company
ditch to the land of appellant for irrigation usage.
As a consequence of the court permission granted
February 17, 1970, the water commissioner has honored in full
the requests of appellant for water without regard to any
priority in the relationship of Clear Creek water rights to
Rock Creek water rights. The result is that in times of
water shortage senior Rock Creek decreed water rights are cut
off, while appellant continues to receive water under his
junior Clear Creek appropriated water rights. This
circumstance became known to Rock Creek water users in 1977
for the first time, and three of them filed the petition
which is the basis for the instant action seeking to have the
1970 court order rescinded and, in effect, direct the water
commissioner to subject the Clear Creek water rights of
appellant to the priorities of Rock Creek water rights.
The following issues are presented for review:
1. Whether the appeal should be dismissed because
notice of appeal was not timely filed?
2. Whether the District Court had jurisdiction under
sections 3-7-213, 3-7-501, MCA, to hear the petition
regarding the administration of water right priorities on
Clear Creek and Rock Creek?
3. Whether the failure to join other owners of water
rights on Clear Creek requires remand of this cause for
joinder, or alternately dismissal under Rule 19, M.R.Civ.P.?
4. Whether the District Court's order is contrary to
Montana law?
5. Whether the District Court's order violates due
process rights of appellant and other Clear Creek water right
owners?
6. Whether the District Court's order denies appellant
equal protection of the laws?
We hereafter treat issues one and two separately and
consolidate issues three through six.
ISSUE 1 -- WHETHER THE APPEAL SHOULD BE DISMISSED BECAUSE
NOTICE OF APPEAL WAS NOT TIMELY FILED?
Respondents contend that appellant's notice of appeal,
filed April 1, 1982, was not timely and therefore this appeal
should be dismissed. The premise underlying respondents'
position is that the order entered by the District Court on
December 17, 1981, constituted a final order, from which date
timeliness of appeal under Rule 5, M.R.App.Civ.P., must be
determined. Respondents further maintain that appellant's
"Motion for Clarification", filed January 19, 1982, does not
suspend the running of time for filing notice of appeal
because Rule 5, M.R.App.Civ.P., specifically limits
suspension to motions timely filed pursuant to Rules 50(b)
[motion for judgment notwithstanding verdict] , 52 (b) [motion
for amendment of or addition to findings of fact], or 59
[motion for new trial], M.R.Civ.P.
Respondents' argument is not well taken. Absent an
express determination that there is no just reason for delay
and certification as final judgment, an order adjudicating
the rights and liabilities of less than all parties is not
appealable. Rule 54(b), M.R.Civ.P.; Benders v. Stratton
(1982) Mont . , 655 P.2d 989, 39 St.Rep. 2389. The
December 17, 1981 order which determined only the rights of
the appellant vis-a-vis those of respondents was not
certified by the District Court as a final judgment.
Therefore, this cause was not ripe for appeal until March 4,
1982 when the interests of - parties,
all including an
intervenor, were finally determined.
Furthermore, under Rule 5, M.R.App.Civ.P., the thirty
day period for filing of notice of appeal does not commence
to run until the clerk of court properly serves notice of
entry of judgment as required by Rule 77(d), M.R.Civ.P.
Pierce Packing Co. v. District Court of the Thirteenth
Judicial District (1978), 177 Mont. 50, 579 P.2d 760.
Because here the clerk of the District Court did not serve
notice of entry of judgment upon the parties, respondents beg
the question by asserting that the thirty day period provided
under Rule 5, M.R.App.Civ.P., has expired, when it has not
yet commenced. Cf. Rex v. Rex (1982), Mont . , 649
P.2d 460, 39 St.Rep. 1432, where there was neither a final
judgment nor service of notice of entry of judgment and the
combined factors constituted a jurisdictional defect.
We hold that the notice of appeal was timely made and
proceed to examine the substantive issues raised herein.
ISSUE 2 -- DID THE DISTRICT COURT HAVE JURISDICTION TO HEAR
T H I S MATTER?
Appellant argues exclusive jurisdiction to resolve water
disputes lies with the duly elected water judge of the water
division in which the waterways are located pursuant to
sections 3-7-101, 102, and 3-7-501, MCA, which provide in
pertinent part as follows:
"3-7-101. Water divisions. To adjudicate existing
water rights water divisions are established as
defined in 3-7-102. A water division shall be
presided over by a water judge."
"3-7-102. Water divisions boundaries. There are
four water divisions whose boundaries are formed by
the natural divides between drainages and the
borders of the state of Montana and which are
described as follows:
(1) The Yellowstone River Basin water division
consists of those areas drained by the Yellowstone
and Little Missouri Rivers and any remaining areas
in Carter County . . ."
"3-7-501. Jurisdiction. (1) The jurisdiction of
each judicial district concerning the determination
and interpretation of existing water rights is
exercised exclusively by it through the water
division or water divisions that contain the
judicial district wholly or partly.
(2) No water judge may preside over matters
concerning the determination and interpretation of
existing water rights beyond the boundaries
specified in 3-7-102 for his division except as
provided in 3-7-201 and 3-7-213.
(3) The water judge for each division shall
exercise jurisdiction over all matters concerning
the determination and interpretation of existing
water rights within his division as specified in
3-7-102 that are considered filed in or transferred
to a judicial district wholly or partly within the
division."
After the instant action was filed on May 12, 1977,
District Judge Jack D. Shanstrom, acting as water judge,
designated the presiding judge of the Thirteenth Judicial
District, Judge Charles Luedke, to be the water judge for
purposes of presiding over the proceedings here at issue.
The appellant contends that Judge Luedke was without
jurisdiction because the water judge did not comply with
statutory requirements for designating an alternate judge to
serve as water judge. Appellant relies upon section 3-7-213,
MCA, which provides:
"3-7-213. Designation of alternate judge. The
water judge may designate any other district judge
or retired district judge to preside in his absence
on his behalf as water judge for the immediate
enforcement of an existing decree or the immediate
granting of extraordinary relief as may be provided
for by law upon an allegation of irreparable harm."
Appellant contends the requirements of section 3-7-213,
MCA, have not been met and that Judge Luedke did not have
jurisdiction. We find such argument to not be dispositive of
the issue.
Section 3-7-501 (2), MCA, hereinbefore set forth,
provides that no water judge may preside over matters beyond
the boundaries of his water division. The apparent purpose
of the statute is to recognize the parochial nature of water
usage and assure that water judges are conversant with the
history of water usage when making water adjudications. The
provisions of section 3-7-213, MCA, governing designation of
an alterna.te judge, must be interpreted in conjunction with
the provisions of section 3-7-501. When the two sections are
integrated we find that the intent of the legislature was to
provide that a district judge, sitting as a water judge,
could not serve beyond the boundaries of his division absent
the showing required by section 3-7-213, MCA. In other words
Judge Shanstrom could not have called in a district judge
from outside the division to serve as water judge in the
Yellowstone River Basin Water Division without a showing that
there was "an immediate enforcement of an existing decree or
the immediate granting of extraordinary relief." No such
showing was necessary here. Judge Luedke served as a
district judge with general jurisdiction over water rights
matters and he was located within the Yellowstone River Basin
Water Division. Judge Luedke clearly had jurisdiction.
CONSOLIDATION - ISSUES - - - 6
OF 3 THRU
WHETHER THE DISTRICT COURT VIOLATED ANY CONSTITUTIONAL RIGHTS
OF APPELLANT OR ACTED CONTRARY TO MONTANA LAW IN INTERPRETING
THE 1970 WATER RIGHTS DECREE?
Appellants contentions categorized in issues 3 thru 6
rest upon two bases. First, appellant assumes that the
adjudication here at bar, affects people not before the
court. Secondly, appellant believes that Clear Creek water
rights can be adjudicated separate and apart from Rock Creek
water rights. Both contentions fail.
With respect to the contention that rights not before
the court were being adjudicated, the District Court, in its
memorandum in support of final order, stated:
"The second principal ground for resistence by
respondent Pihlaja is his contention that to grant
the relief requested by petitioners will be
tantamount to ordering that the separate water
right adjudication decrees of Clear Creek and Rock
Creek be administered as one, which would be
violative of the due process rights of all of the
other owners of water rights in Clear Creek.
"If that were the scope of relief sought by the
present petitioners, the respondents position would
be well-taken. However, the present petition is
limited to the water and water rights which DeVries
and Pihlaja rendered subject to this action, the
Rock Creek cause, by the filing of their original
petition and invoking Court jurisdiction as to them
and securing an Order which allegedly affects the
Rock Creek decreed rights of the present
petitioners. Whether the present petition is
construed as a continuation of the legal momentum
created by the original petition and Order issued
thereon, or is construed as a complaint of
dissatisfied Rock Creek water users under section
85-5-301, MCA, it is confined to the question of
the proprieties of the water allocation being made
by the Water Commissioner under the influence of
the February 17, 1970 Order. In that way the
relief sought by the present petitioners is
actually a matter of directing the Water
Commissioner with respect to the proper
interpretation and effect to be given to the
Language 'contingent on water being available for
said filings.' The present petitioners contend
that such 'availability' should be measured
according to priority rights vested in Rock Creek
water right owners and respondent contends that it
should not. The issue raised is, therefore, far
short of any request to administer two separate
decrees as one."
We agree with the District Court. The only rights
affected by the court's order are the rights of the parties
before the court. The court held that the proper
interpretation to be given to the February 17, 1970 Order,
was simply that "available water" had to recognize senior
rights in Rock Creek. This did not administer two streams
and does not affect rights not before the court.
We now turn our attention to the basic problem involved,
nameiy, a determination of the relationship between the Clear
Creek water in which appellant has rights and the decreed
water rights of petitioners in Rock Creek.
It is undisputed that Clear Creek is a tributary of Rock
Creek. As such, its waters belong to Rock Creek to the
extent of prior appropriations. Woodward v. Perkins (1944),
116 Mont. 46, 147 P.2d 1016; Loyning v. Rankin (1946), 118
Mont. 235, 165 P.2d 1006.
It is also undisputed that the decreed water rights of
the petitioners are prior in time to the Clear Creek
appropriations acquired by appellants. We need not cite
authority for the proposition that "first in time, first in
right" is the controlling principle. We agree with the
District Court that the 1970 Court Order, applied by the Rock
Creek water commissioner to fulfill junior appropriations
ahead of the prior decreed rights of petitioners, was
improper. The District Court was correct in honoring the
senior rights of petitioners in Rock Creek and requiring that
the water rights of appellants be administered so that these
senior rights be given priority.
We affirm the order of the Di
V
We concur:
2 4 6h4,&
" 4
Chief Justice
Mr. Justice Fred J. Weber, respectfully dissents as follows:
While in general I agree with the legal theories stated
in the majority opinion, I do not agree with the result.
The contradiction which is not clearly resolved is
pointed out in the majority quotation from the District Court
opinion which states:
"The second principal ground for resistance by
respondent Pihlaja is his contention that to grant
the relief requested by petitioners will be
tantamount to ordering that the separate water
right adjudication decrees of Clear Creek and Rock
Creek be administered as one, which would be
violative of the due process rights of all of the
other owners of water rights in Clear Creek.
"If that were the scope of relief sought by the
present petitioners, the respondent's position
would be well taken " ...
The order of the District Court does result in rights on
Clear Creek and Rock Creek being administered as one.
The petition of February 17, 1970, sought approval for
the use of Rock Creek as a conduit to carry Clear Creek water
for approximately one and one-quarter miles. The 1970 order
does not indicate any intention on the part of petitioners or
the District Court to subject Clear Creek rights to Rock
Creek rights as a result of the application. Nonetheless,
the District Court in its memorandum stated:
"That brings us to the basic problem involved,
namely, a determination of the relationship between
the Clear Creek water and water rights of
respondent, and the decreed water rights in Rock
Creek of the present petitioners."
The District Court then pointed out that the decreed Rock
Creek rights are prior in time to the Clear Creek
appropriations.
The District Court then made its "clarification" of the
1970 order. The effect of that "clarification" is to hold
that the request to transport water in Clear Creek subjected
Clear Creek rights to the Rock Creek adjudication. As a
result, appellant is now required to allow his Clear Creek
water to flow into Rock Creek where it is to be used by Rock
Creek appropriators during times of water shortage.
As a result, for the parties to this action, two
separate streams are administered as one, a result which the
District Court indicated it did not intend. I do not find
the 1970 petition and order a sufficient basis for that type
of action.
From the majority opinion, which is founded upon the
principle of first in time being first in right, an owner of
a Rock Creek water right can arbitrarily sue any owner of a
Clear Creek right and restrain his usage of water during
times of shortage. In the absence of an adjudication which
covers both streams, I do not agree with that conclusion.